By Lal Wijenayaka –
The much respected and universally accepted concepts of ‘Rule of Law’ and ‘Independence of the Judiciary’ are again at the forefront of the political dialogue in our country.
Article 12(1) and 12(2) of the Constitution declares ‘Rule of Law’ as a fundamental right by enacting that ‘all persons are equal before the law and are entitled to equal protection of the law’ and that ‘no citizen shall be discriminated against on the ground of race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds.’ What it means is that law shall apply equally to all citizens and all citizens will be subject to the due process of the law. One cannot envisage Rule of Law without an Independent Judiciary. Independence of the Judiciary is constitutionally protected by the provisions set out in Articles 107 to 117 of the Constitution.
It is not an overstatement to state that a government by the will of the people, upholding of the fundamental rights as enunciated in the Universal Declaration of Human Rights and the Rule of Law are the three pillars on which a Modern Democratic state rests. The Rule of Law requires a judiciary that is independent such that their conscience should accompany their judgment. The judiciary has to adjudicate between man and man and between man and the state in the manifold disputes that arise between them. The Independence of the Judiciary is to hold the scales evenly in adjudication between man and man and man and the state. The Independence of the Judiciary in judging between man and man is not difficult to ensure, as the independence of the judges in judging between man and the state. Importantly the struggle for independence of the judiciary has been the struggle to ensure Independence of the Judiciary in judging between man and the state. What in fact it means in modern governance is that the judiciary should be independent from the executive and the legislature in the performance of its constitutional function in the administration of justice.
It is not in dispute that Sri Lanka has enjoyed the Rule of Law and the Independence of the Judiciary at least from the advent of the Donourghmore Constitution in 1931 till the introduction of the Executive Presidential System of Government in 1977. The threat to the Rule of Law and the Independence of the Judiciary under the Executive Presidential System with a powerful President was one of the main reasons that prompted all political parties to agree to the introduction of the 17th amendment to the Constitution. The repeal of the 17th amendment by introducing the 18th amendment to the Constitution has vested unprecedented powers unknown in any Presidential System that even nominally proclaims to be democratic.
It has to be accepted that the perception of the masses is that the ‘Rule of Law’ and the ‘Independence of the Judiciary’ has faced painful blows and that we are faced with the question can the Rule of Law and Independence of the Judiciary survive in the face of these blows.
After the 18th Amendment and the unprecedented move by the President in bringing the Attorney General’s Department under the Ministry of Defense which is under him, events has moved fast which has caused deep concern among those committed to upholding the due administration of justice. The withdrawal of a murder charge against a political activist of the Government party while the trial was on, the withdrawal of the indictment against a minister changed with misappropriation, the withdrawal of rape charges against an MP on flimsy and legally unacceptable grounds, the behavior of a minister in tying a public servant to a trace in the view of the Police and TV Cameras and the failure of the authorities to take action, the way the Bharatha Lakshman Premachandra’s murder investigation handled, the Malaka affair, the numerous criminal acts of politicians which has been either ignored or condoned and many other incidents culminating in the attack on the Magistrates’ Court of Mannar and intimidation and threats on the Magistrate in performing his judicial functions, are of deep concern for all those committed to a ‘Rule of Law’ and ‘Independence of the Judiciary’.
In the face of these events the statements issued by the Judicial Service Commission through its’ Secretary and the verbal attacks that followed on the Chief Justice and the Other Judges of the Supreme Court in the state media through well known spokesmen for the Government when the judgment n the reference to the Supreme Court regarding the Divineguma Bill was due has brought the issue of ‘Rule of Law’ and ‘independence of the Judiciary’ to the center stage of the political discourse.
It is the 1st time in the legal history of our country that the JSC and/or judges has to go public on the interference of the executive in the performance of the constitutional functions vested in the the JSC. We should salute the JSC for its’ boldness in not submitting to the pressures of the executive and for the boldness displayed in issuing a public statement. It is the people who are souvereign under our constitution and the people has to be aware of any pressure that is brought about to prevent the due functioning of the Constitution.
What is important is to understand the underline meaning of the contents of the statement issued by the JSC.
It conveys the message that the pressure on the JSC is so heavy that the JSC while resisting these pressures it is becoming unbearable. Further it is a statement that calls upon the people, that is civil society to be aware of what is brought about on the JSC.
The Bar Association of Sri Lanka as well as ‘Lawyers for Democracy’ which is an organization of Lawyers has come out in support of the JSC in its struggle to protect its independence.
Lawyers in different parts of the country has come out in support of the JSC, which in fact means for protection of the ‘Rule of Law’ and ‘Independence of the Judicial’.
As civil society becomes aware of the gravity of the situation there is bound to be more forceful demonstration of its opposition to the moves to subvert the Rule of Law and the Independence of the Judiciary.
It is seen that those concerned are not paying serious attention to what has caused this crisis. The crisis is due to the all powerful office of the Executive President that we have created. It is only the dismantling of this system and a reversal to a parliamentary democracy with the executive powers vested in the Prime Minister and the Cabinet under the overall control of the legislature with accountability to Parliament that can bring back the faith in ‘Rule of Law’ and ‘Independence of Judiciary’ and in fact it means democracy itself that we enjoyed and which is turning out to be history now.
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